Citation Nr: 0014214
Decision Date: 05/31/00 Archive Date: 06/05/00
DOCKET NO. 98-05 559 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in No. Little
Rock, Arkansas
THE ISSUE
Entitlement to an increased evaluation for a left hand
disability (residuals, injury to left index finger, tip of
thumb, with ankylosis of middle finger), currently evaluated
as 40 percent disabling.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher P. Kissel, Counsel
INTRODUCTION
The appellant served on active duty from November 1968 to
November 1971.
This case comes before the Board of Veterans' Appeals (the
Board) on appeal from a January 1998 rating decision of the
North Little Rock, Arkansas, Department of Veterans Affairs
(VA) Regional Office (RO).
The record reflects that the appellant appeared at a hearing
before the undersigned Member of the Board on March 17, 2000.
A transcript of that hearing has been associated with the
record on appeal.
It is noted that claims seeking entitlement to service
connection for disabilities of the back, neck, shoulder and
arm claimed as secondary to the service-connected left hand
disability were adjudicated by the RO while this case was
pending on appeal. The RO issued a rating decision in August
1998 which denied these claims, and notice of this rating
action and his appellate rights related thereto was furnished
to the appellant by letter dated September 3, 1998. However,
the appellant did not appeal this rating decision by filing a
notice of disagreement within a year of the notice letter.
Accordingly, these claims are not before the Board. The
Board takes this opportunity to note that it may only
exercise jurisdiction over an issue after an appellant has
filed a timely notice of disagreement to a rating decision
denying the benefit sought, and following appellate
processing, a timely substantive appeal. 38 U.S.C.A. § 7105
(West 1991); Roy v. Brown, 5 Vet. App. 554 (1993).
FINDINGS OF FACT
1. The medical evidence of record shows that the appellant
has impaired range of motion/gripping function due to the
severity of the in-service injuries to his left hand; the
thumb and index fingers are partially amputated and the
middle finger is fused in a nearly straight position.
2. The appellant has not required frequent hospitalizations
for his left hand disability, nor is it shown that this
disability causes marked interference with employment or
otherwise renders the regular schedular criteria inadequate
to rate the disability.
CONCLUSIONS OF LAW
1. The appellant's left hand disability is no more than 40
percent disabling pursuant to the schedular criteria.
38 U.S.C.A. §§ 1155, 5107(b) (West 1991); 38 C.F.R. Part 4,
Diagnostic Code 5218 (1999).
2. Application of extraschedular provisions for the
appellant's left hand disability is not warranted. 38 C.F.R.
§ 3.321(b) (1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The appellant's increased rating claim is well grounded.
38 U.S.C.A. § 5107(a) (West 1991) and Proscelle v. Derwinski,
2 Vet. App. 629 (1992).
Disability evaluations are determined by the application of a
schedule of ratings, which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R.
Part 4 (1999). Separate diagnostic codes identify the
various disabilities. Consideration of the whole-recorded
history is necessary so that a rating may accurately reflect
the elements of disability present. 38 C.F.R. § 4.2 (1999);
Peyton v. Derwinski, 1 Vet. App. 282 (1991).
A merits-based review of a claim requires the Board to
provide a written statement of the reasons or bases for its
findings and conclusions on material issues of fact and law.
38 U.S.C.A. § 7104(d)(1) (West 1991). The statement must be
adequate to enable a claimant to understand the precise basis
for the Board's decision, as well as to facilitate higher
appellate review. Simon v. Derwinski, 2 Vet. App. 621, 622
(1992); Masors v. Derwinski, 2 Vet. App. 181, 188 (1992). To
comply with this requirement, the Board must analyze the
credibility and probative value of the evidence, account for
evidence which it finds to be persuasive or unpersuasive, and
provide reasons for rejecting any evidence favorable to the
appellant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995),
aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table);
Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Moreover,
the Board may not base a decision on its own unsubstantiated
medical conclusions but, rather, may reach a medical
conclusion only on the basis of independent medical evidence
in the record or adequate quotation from recognized medical
treatises. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991).
To accomplish the above, the Board has the duty to assess the
credibility and weight to be given to the evidence. See
Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997), and cases
cited therein. Once the evidence is assembled, the Board is
responsible for determining whether the preponderance of the
evidence is against the claim. Gilbert v. Derwinski, 1 Vet.
App. 49, 55 (1990). If so, the claim is denied; if the
evidence is in support of the claim or is in equal balance,
the claim is allowed. Alemany v. Brown, 9 Vet. App. 518, 519
(1996).
With respect to musculoskeletal joint disabilities, the Board
must, in addition to the schedular criteria, consider the
application of 38 C.F.R. § 4.40 (1999) regarding functional
loss due to joint pain on use or during flare-ups, and 38
C.F.R. § 4.45 (1999) regarding weakness, fatigability,
incoordination, or pain on movement of a joint. DeLuca v.
Brown, 8 Vet. App. 202, 203 (1995) (sections 4.40 and 4.45
make clear that pain must be considered capable of producing
compensable disability of the joints); Quarles v. Derwinski,
3 Vet. App. 129, 139 (1992) (failure to consider section 4.40
improper when that regulation made potentially applicable
through assertions and issues raised in record). Hence, an
increased schedular rating for the appellant's left hand
disability may be in order (1) pursuant to the relevant
schedular criteria, i.e., notwithstanding the etiology or
extent of his pain complaints, if the medical examination
test results reflect findings which support higher ratings
pursuant to the delineated schedular criteria, (2) pursuant
to 38 C.F.R. § 4.40 on the basis of additional functional
loss due specifically to complaints of pain on use or during
flare-ups, and (3) pursuant to 38 C.F.R. § 4.45 if there is
additional functional loss due specifically to any weakened
movement, excess fatigability, or incoordination.
Additionally, with regard to assigning an evaluation for
degenerative or traumatic arthritis under Diagnostic Codes
5003 or 5010, the General Counsel has held that the Board
must consider whether an increased schedular or separate
rating may be in order pursuant to 38 C.F.R. § 4.59 on the
basis of painful motion "with joint or periarticular
pathology." See VAOPGCPREC 9-98, 63 Fed. Reg. 56704 (1998).
With respect to the above, the General Counsel held that the
Board's consideration of sections 4.40, 4.45 and 4.59
depended on whether the musculoskeletal disability was rated
under a specific diagnostic code that did not involve
limitation of motion and where another diagnostic code based
on limitation of motion was potentially applicable to the
particular disability under consideration. Id. However, the
General Counsel cautioned that the applicability of a
separate or multiple rating for a musculoskeletal disability
was subject to the limitations of 38 C.F.R. § 4.14, which
prohibits "the evaluation of the same manifestation [of a
disability] under different diagnoses." Id.
The evaluation of a service-connected disability requires a
review of a veteran's medical history with regard to that
disorder. 38 C.F.R. § 4.2. However, the primary concern in
a claim for an increased evaluation is the present level of
disability. See Francisco v. Brown, 7 Vet. App. 55 (1994).
In Francisco, the United States Court of Appeals for Veterans
Claims (hereinafter "the Court") stated that although a
rating specialist was directed to review the recorded history
of a disability in order to make an accurate evaluation, the
regulations did not give past medical reports precedence over
current findings. Id. at 58. Hence, for purposes of
application of the schedular criteria, the Board assigns the
greater weight of probative value to the medical evidence, in
particular, the recent VA compensation examination conducted
in November 1997, and the report of an outpatient orthopedic
evaluation for the left hand disability dated in January
1999.
Service medical records reflect that the appellant severely
injured his left hand in September 1971 when a tank engine
blew up. As a result, he underwent surgical amputation of
the terminal phalanx of his left index finger and he lost the
tip of his thumb. In addition, he sustained a complete bony
ankylosis of the middle finger. His left hand is his minor
or non-dominant extremity. Service connection for this
disability was established soon after service discharge by
rating decision in February 1972, at which time it was
assigned the maximum 40 percent rating under Diagnostic Code
5218 (unfavorable ankylosis of three digits of the hand).
This rating has remained unchanged since that time. In
connection with his original claim, the appellant was
evaluated on a VA compensation examination in January 1972.
Clinical findings on this examination detailed the nature of
his injuries, as described above in this paragraph, and were
considered by the RO to support the maximum schedular rating
(40 percent) under Code 5218. Following the initial grant of
service connection, the appellant was next evaluated on a
compensation examination in December 1974, at which time the
clinical picture was essentially unchanged, although he
complained that the middle finger was contracting and as a
result, getting caught up in his pockets when he attempted to
put his hand in his pocket. There was also some callous
formation over the shafts of the 3rd, 4th, and 5th fingers due
to the old fractures. The appellant complained that the
calluses were painful to the touch. As noted above, his 40
percent rating was unaltered based on the findings from this
examination. Other than these two VA compensation
examinations, there is no evidence of any outpatient
treatment or surgical/hospital interventions for the
appellant's left hand disability between 1972 and 1997.
The appellant filed his claim on appeal in October 1997,
alleging increased impairment of his left hand disability in
connection with his employment as a truck driver. He stated
that his left hand was interfering with his ability to drive
and unload tractor trailers. He also stated that he was in
constant pain. When evaluated by VA for compensation
purposes in November 1997, the appellant reported similar
work-related difficulties, and in addition, he reported that
he had hand pain with cold weather and problems getting the
hand into and out of his pockets. He also stated that he had
difficulties loading various sized objects from this truck.
Objectively, clinical findings on examination were
essentially unchanged compared with the older VA examinations
of 1972 and 1974; the thumb showed a short pulp with a short
nail, although there was no deformity of the nail bed; the
index finger was amputated just distal to the interphalangeal
joint; the middle finger was ankylosed in a nearly straight
position; and, the dorsum of the hand in the region of the
ring and little fingers showed irregularity and prominence of
the bone at the base of the metatarsal area. On basic
motions of the left hand, the appellant was able to oppose
the thumb to all finger tips, and resistance to this motion
revealed only some weakness in opposition of the thumb to the
ring finger tip. There were no signs of circulatory
impairment and both the radial and ulnar were functional by
compression testing. In addition, there were no deficits on
sensory evaluation of the left hand. However, grip strength
was slightly decreased on the left compared to the right, and
hooking action of the left hand was impaired because only the
4th and 5th fingers participated in the hook action
efficiently. On fist making, the index and middle fingers
could not make contact with the palm. X-rays of the left
hand showed the post-surgical changes involving the
amputations and fractures as described above. The "PIP"
joint of the middle finger showed bony fusion, also noted to
be due to post-surgical and traumatic changes caused by the
original injury. There were no other bony abnormalities seen
on x-rays. Based on these findings, the RO denied an
increased rating for the left hand disability by rating
decision in January 1998, and this appeal followed.
During the pendency of the appeal, the RO received additional
medical records, although most of these records were
unrelated to the left hand disability. Specifically, the
record reflects that the appellant was evaluated by a VA
orthopedic physician in February 1998, but the report of this
evaluation dealt with a neck injury that was causing him
significant impairment in his work as a truck driver. As
noted in the INTRODUCTION, the appellant filed claims seeking
service connection for additional musculoskeletal disorders
of the back, neck, shoulder and arm claimed as secondary to
his left hand disability, but these claims were denied and
are not presently before the Board on appeal. VA
in/outpatient treatment reports recently obtained and dated
between 1998 and 2000 reflect additional treatment for these
disorders, but show only one outpatient evaluation, in
January 1999, for the left hand disability. On that
evaluation, clinical findings were unchanged as previously
noted in 1997 (description of injuries and deformities
essentially as recorded in other medical records) and x-rays
were interpreted as showing no osteo-arthritic changes or
other abnormalities. However, because of his complaints of
increased pain and impairment, the report reflects that he
was given a TENS unit and a trial of non-steroidal anti-
inflammatory medications (NSAIDS) for treatment purposes.
The later dated outpatient reports reflect that he was
continued on NSAIDS (Percocet), but it is unclear whether he
continued use of the TENS unit.
At his hearing before this Board Member in March 2000, the
appellant testified to the fact that his left hand continued
to cause him problems, especially with gripping action,
although he stated that he continued to work as a truck
driver and had not missed any time off from work due to his
left hand disability. He indicated that he could not unload
his truck without assistance from others, reducing his income
in the process (he scaled back multiple-drop loads to a
single load to eliminate cost of assisted unloading).
Regarding the TENS unit, he testified that he no longer used
the unit very often, but that he used large quantities of an
ointment for pain relief. Regarding pain, the appellant
testified that he did not experience chronic pain per se, but
that the hand bothered him more with changes in the weather.
After review of all material issues of fact and law, the
Board concludes that a preponderance of the evidence is
against granting increased compensation for the appellant's
left hand disability. As stated above, the appellant has
been receiving the maximum schedular rating of 40 percent for
the left hand under Code 5218 for many years. The older
records in this case document serious injuries to three
fingers of his left hand in service and as a result, he has
been compensated at the 40 percent level for unfavorable
ankylosis. As noted, the evidence in this case does not
reflect a significant level of medical intervention and
treatment for this disability in the lengthy post service
period, and such a fact, when considered along with the more
recent clinical findings reported on the November 1997 VA
examination and the January 1999 outpatient evaluation which
reflect no substantive changes in his disability compared to
the earlier evaluations, weighs heavily against a finding of
an increased level of impairment under Diagnostic Code 5218.
The other diagnostic criteria for multiple finger injuries
provide no basis to award a higher evaluation; Codes 5220-
5223 are for ratings on account of favorable ankylosis and
provide no greater level of compensation above the 40 percent
rating assigned for the appellant's disability. The other
Codes for unfavorable ankylosis require four and five digit
impairment by unfavorable ankylosis (Codes 5216 and 5217) to
warrant increased compensation. While a bony prominence of
the ring and little fingers was noted on the 1997 VA
examination, likely due to the old fractures sustained at the
time of the original injury, it has not been shown that his
left hand is manifested by unfavorable ankylosis involving
more than the thumb, index and middle fingers. Only these
fingers are shown by the medical evidence to involve impaired
range of motion/gripping function due to the severity of the
in-service injuries; the thumb and index fingers are
partially amputated and the middle finger is fused in a
nearly straight position. Notwithstanding, the appellant had
only "slightly decreased" gripping strength in the left
hand compared to the right and he could manipulate his ring
and little fingers by hitting his palm at the time of the
1997 VA examination. Further, x-rays taken on the VA
examinations in 1972, 1974, 1997 and at the time of the 1999
outpatient evaluation showed only the old traumatic changes
caused by the amputations and old fractures with no evidence
of other abnormalities to include osteo-arthritic changes.
In view of these findings, the Board concludes that the
appellant does not have unfavorable ankylosis of the left
hand involving more than his thumb, index and middle fingers
and therefore, higher schedular evaluations for this
disability under potentially applicable Diagnostic Codes are
not for consideration. Additionally, the Board notes that
photographs of the left hand recently submitted by the
appellant appear to support the recent medical finding as his
ring and little fingers appear normal compared to the obvious
deformities and ankylosed state of the thumb, index and
middle fingers.
In summary, the appellant sustained severe injuries to his
left hand in service and has been appropriately compensated
for the injuries at a significant level (40 percent for one
hand) for many years. This high rating has been assigned to
approximate an average impairment in earning capacity due to
inability to grip objects efficiently, and the record
reflects the appellant experiences such problems directly in
his line of work as a truck driver. See 38 C.F.R. §§ 4.1,
4.10 (1999). It therefore appears based on the nature of his
injuries sustained in service and the schedular levels
contemplated by the regulations that his disability is not
considered to be productive of greater than the maximum 40
percent rating assigned. Accordingly, with medical findings
showing essentially a static disability picture of the left
hand since service discharge, it is not shown by the evidence
that he is entitled to increased disability compensation
under the schedular criteria.
The Board finds that the appellant's left hand disability does
not warrant an increased rating under 38 C.F.R. §§ 4.40 and
4.45 because the medical evidence does not substantiate
additional range-of-motion loss due to pain on use or during
flare-ups, or due to weakened movement, excess fatigability,
or incoordination. Indeed, the VA examiners who evaluated the
appellant in 1997 and 1999 found essentially no residual
impairment apart from the reduced grip strength and ankylosed
state of the appellant's thumb, index and middle fingers,
which has been rated 40 percent for years. While the
appellant has reported an overall increasing disability
picture which he believes is due to his left hand, the balance
of the medical evidence is negative for any evidence of
additional functional loss affecting the left hand. As
indicated above, the appellant has a disability rated 40
percent disabling for the exact kind of impairment that he
describes (loss of grip and efficient functional use of the
left hand). This disability rating has been in effect for
many years, and consequently, is protected. However, the
recent clinical findings do not reflect new or other kinds of
impairment caused by the disability. Thus, to find
entitlement to further increased disability compensation under
38 C.F.R. § 4.40 would in the opinion of the Board violate the
anti-pyramiding provisions because these findings would be
overlapping or duplicative in nature in light of consideration
of even higher ratings under section 4.40. Accordingly, the
Board concludes that a preponderance of the evidence is
against a finding of "additional functional loss" in his
left hand that is might be caused by his pain complaints.
Moreover, although the Board is required to consider the
effect of pain when making a rating determination, which has
been done in this case, it is important to emphasize that the
rating schedule does not provide a separate rating for pain.
Spurgeon v. Brown, 10 Vet. App. 194, 196 (1996).
In view of the above, the Board concludes that an increased
disability rating for the left hand disability is not
warranted, based on the application of 38 C.F.R. §§ 4.40,
4.45, and 4.59.
The Board has considered the potential application of the
various provisions of 38 C.F.R. Parts 3 and 4, whether or not
they were raised by the appellant. Schafrath v. Derwinski, 1
Vet. App. 589 (1991). However, for the reasons discussed
above, the Board concludes that the currently assigned rating
for the appellant's service-connected left hand disability
adequately reflects the level of impairment pursuant to the
schedular criteria.
In particular, the Board has given consideration to
evaluating this disability under different diagnostic codes.
The Board notes that the assignment of a particular
diagnostic code is "completely dependent on the facts of a
particular case." Butts v. Brown, 5 Vet. App. 532, 538
(1993) (en banc). One diagnostic code may be more
appropriate than another based on such factors as an
individual's relevant medical history, the current diagnosis
and demonstrated symptomatology. Any change in a diagnostic
code by a VA adjudicator must be specifically explained.
Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). However,
in the instant case, the Board finds that protected rating
under Diagnostic Codes 5218 is the appropriate schedular
criteria for the evaluation of this disability. Tedeschi v.
Brown, 7 Vet. App. 411, 414 (1995). Moreover, increased
compensation is not warranted by a separate rating under
Diagnostic Code 5003 as it is not shown by the x-ray evidence
in the claims file that his disability includes impairment by
osteo-arthritic changes.
The appellant's contentions and testimony on appeal have been
accorded due consideration; however, the Board concludes that
the recent medical findings discussed above are more
probative of the current level of disability. Francisco, 7
Vet. App. at 58. It should be emphasized that the diagnoses
and clinical findings rendered on the recent 1997 VA
examination are consistent with the appellant's medical
history, described in detail above, and are essentially
uncontradicted by any other recent medical evidence of
record. The appellant is not shown to be qualified to render
a medical diagnosis or opinion. Hence, his views as to the
etiology of his pain complaints and/or the extent of
functional impairment in his left hand are specifically
outweighed by the medical evidence of record cited above.
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992) (lay
assertions will not support a finding on questions requiring
medical expertise or knowledge).
In exceptional cases where schedular evaluations are found to
be inadequate, the RO may refer a claim to the Under
Secretary for Benefits or the Director, Compensation and
Pension Service, for consideration of "an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability or disabilities." 38 C.F.R. § 3.321(b)(1)
(1999). "The governing norm in these exceptional cases is:
A finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent periods of
hospitalization as to render impractical the application of
the regular schedular standards." Id. The RO in this case
considered this regulation but concluded that referral was
not necessary. The Board agrees. In this regard, the Board
finds that the schedular criteria and evaluation assigned for
the appellant's left hand disability is not inadequate. The
medical evidence reflects that his disability has not
increased in severity over the years under the terms of the
schedular criteria. Therefore, it does not appear that he
has an "exceptional or unusual" disability to the extent
that the schedular standards are inadequate to properly rate
the disability.
The Board also finds no evidence of an exceptional disability
picture as manifested by related factors such as marked
interference with employment or frequent hospitalizations.
It is not shown by the evidence that the appellant has
required hospitalization in the remote or recent past for his
left hand disability. In addition, there is no recent record
of significant or regular outpatient treatment for his
disability; as detailed above, he uses a TENS unit from time
to time and takes pain relief medications. However, he has
not ever required surgery or other significant medical
interventions. Hence, it does not appear that he has an
exceptional disability manifested by frequent
hospitalizations. With respect to employment, it is noted
that the appellant is currently employed, and although it is
evident that he experiences some on-the-job limitations, as
noted, he nevertheless is able to maintain employment and as
he stated at his March 2000 hearing, he has not missed time
off from work due to his hand disability. In view thereof,
the Board finds that the overall picture presented by the
evidence in the claims folder does not actually reflect
"marked interference" in employment due specifically to the
left hand disability. Thus, in the absence of any evidence
which reflects that this disability is exceptional or unusual
such that the regular schedular criteria are inadequate to
rate it, an extraschedular rating on the basis of employment
handicap is not in order.
With respect to the appellant's claim addressed above, and
for the reasons discussed pertinent thereto (preponderance of
evidence against a rating higher than 40 percent), the Board
finds that the evidence in this case is not so evenly
balanced so as to allow application of the benefit of the
doubt rule as required by law and VA regulation. 38 U.S.C.A.
§ 5107(b) (West 1991); 38 C.F.R. §§ 3.102, 4.3 (1999).
ORDER
An increased evaluation above 40 percent for the appellant's
left hand disability is denied.
JOAQUIN AGUAYO-PERELES
Member, Board of Veterans' Appeals